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The Legacy of the ICTY and ICTR in China

Part of: International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate

Published online by Cambridge University Press:  20 January 2017

Bing Bing Jia
Bing Bing Jia*
Affiliation:
Tsinghua University Law School, Beijing, China
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Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

Type
Symposium on the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Broadening the Debate
Information
AJIL Unbound , Volume 110 , 2016 , pp. 245 - 250
Copyright
Copyright © American Society of International Law 2016

References

1 A similar thought was expressed in Sara Kendall & Sarah M. H. Nouwen, Speaking of Legacy: Towards an Ethos of Modesty at the International Criminal Tribunal for Rwanda, 110 AJIL 212, 213 (2016).

2 Secretary-General, Report Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (May 3, 1993).

3 Id.at para. 29.

4 For instance, on the principles of international law recognized by the Nuremberg Charter and the judgment of the International Military Tribunal at Nuremberg, as formulated by the International Law Commission, see Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law 238 (1965); Bing Bing Jia, The Two Approaches to the Superior Orders Plea, in Trials for International Crimes in Asia 248, 260-263 (Kirsten Sellars ed., 2016).

5 UNSC, 47th Sess., 3175th mtg., UN Doc. S/PV. 3175 (Feb. 22, 1993).

6 UNSC, 47th Sess., 3217th mtg. at 33-34, UN doc. S/PV.3217, (May 23, 1993).

7 This view was again instrumental in China’s abstention in the voting on Resolution 955 that established the ICTR and endorsed its statute: 49th Sess., 3542 d mtg. at 11, UN Doc. S/PV.3452 (Nov. 8, 1994).

8 Prosecutor v. Blakić, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum (Int’l Crim. Trib. for the Former Yugoslavia July 18, 1997).

9 Prosecutor v. Blakić, Case No. IT-95-14-AR108 bis, A 1470-A 1465 (Int’l Crim. Trib. for the Former Yugoslavia).

10 Written Statement of the People’s Republic of China to the International Court of Justice on the Issue of Kosovo (filed at the Court on 16 April 2009); Oral Submissions: ICJ, Public Sitting on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, CR 2009/29 (Dec. 7, 2009).

11 Supra notes 5 and 6.

12 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole 3d mtg. paras. 73-74, UN Doc. A/CONF.183/C.1/SR.3 (June 17, 1998). Also United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th plenary mtg. para. 38, UN Doc. A/CONF.183/SR.9, (July 17, 1998) (when the Chinese representative explained his negative vote on the draft Rome Statute). But see, Statute of the International Criminal Tribunal for Rwanda art. 3, SC Res. 955 (Nov. 8, 1994).

13 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole 3d mtg. para. 77, UN Doc. A/CONF.183/C.1/SR.3 (June 17, 1998).

14 Id.

15 Id.

16 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th plenary mtg. para. 36, UN Doc. A/CONF.183/SR.9, (July 17, 1998).

17 Id. at para. 39.

18 Review Conference of the Rome Statute of the International Criminal Court (Kampala, 31 May – 11 June 2010), Official Records, Annex IX, Statement by China, at 125 (“it is necessary for the Security Council to make a determination of its existence first before the International Criminal Court could exercise jurisdiction over the crime of aggression. The existence of an act of aggression should be determined by the Security Council” ).

19 Documents of the trials of Japanese war Criminals 2 (Chinese) (Zhan-Ping Wang et al. eds., 2005) (reproducing the Decision on the Treatment of War Criminals Involved in Japan’s Invasion of China and Currently in Custody, adopted by the Standing Committee of the People’s Congress of China on 25 April 1956).

20 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome, 15 June 17 July 1998), II Official Records, summary records of the plenary meetings of the conference and of the Committee of the Whole, UN Doc. A/CONF.183/13.

21 Sixth Committee, 61st Sess., 18th mtg. para. 44, UN Doc. A/C.6/61/SR.18, para. 44 (Nov. 1, 2006).

22 Id. at para. 46. Also see International Law Commission, Report on the work of its fifty-eight session paras. 83-84 UN Doc. A/CN. 4/577 (Jan. 17, 2007).